European Court of Human Rights

Information Note on the Court’s case-law No. 170

January 2014

Jones and Others v. the United Kingdom - 34356/06 and 40528/06

Judgment 14.1.2014 [Section IV] See: [2014] ECHR 32

Article 6

Criminal proceedings

Article 6-1

Access to court

Decision to strike out civil claims alleging torture on account of immunity invoked by defendant State (the Kingdom of Saudi Arabia) and its officials: no violation

 

Facts - The applicants alleged that they had been subjected to torture while in custody in the Kingdom of Saudi Arabia. The first applicant (Mr Jones) subsequently commenced civil proceedings in the English High Court against the Kingdom, the Saudi Ministry of Interior and an individual officer. The other three applicants issued proceedings against four individuals: two police officers, a deputy prison governor and the Saudi Minister of the Interior. The High Court ruled that all the defendants were entitled to immunity under the State Immunity Act 1978 and refused the applicants permission to serve the proceedings outside the jurisdiction. On appeal, the Court of Appeal drew a distinction between immunity ratione personae (which applied to the State, the serving head of State and diplomats) and immunity ratione materiae (which applied to ordinary officials, former heads of State and former diplomats). It upheld the High Court’s decision in respect of the Kingdom and the Ministry, but allowed the applicants’ appeal in respect of the individual defendants. The issue then went to the House of Lords, which agreed with the High Court that all the defendants were entitled to immunity, even where the allegation against them was one of torture. In their application to the European Court, the applicants complained of a violation of their right of access to court.

Law - Article 6 § 1: Measures taken by a State which reflect generally recognised rules of public international law on State immunity could not in principle be regarded as imposing a disproportionate restriction on the right of access to a court as embodied in Article 6 § 1. In its judgment in 2001 in Al-Adsani the Court had found that it had not been established that there had yet been acceptance in international law of the proposition that States were not entitled to immunity in respect of civil claims for damages concerning alleged torture committed outside the forum State. In elaborating the relevant test under Article 6 § 1 in that judgment, the Court was acting in accordance with its obligation to take account of the relevant rules and principles of international law and to interpret the Convention so far as possible in harmony with other rules of international law of which it forms part. It was therefore satisfied that the approach to proportionality set out by the Grand Chamber in Al-Adsani ought to be followed in the instant case.

(a)  Application of those principles in the claim against the Kingdom of Saudi Arabia - The Court noted that in the International Court of Justice’s judgment of 3 February 2012 in Germany v. Italy - which had to be considered authoritative as regards the content of customary international law - it was clearly established that, as that date, no jus cogens exception to State immunity had yet crystallised. The application by the English courts of the provisions of the 1978 Act to uphold the Kingdom of Saudi Arabia’s claim to immunity in 2006 could not therefore be said to have amounted to an unjustified restriction on the applicant’s access to a court.

Conclusion: no violation (six votes to one).

(b)  Application of the principles in the claim against the State officials - All four applicants had complained that they had been unable to pursue civil claims for torture against named State officials. The Court had to examine whether the refusal to allow those claims to proceed had been compatible with Article 6 § 1 of the Convention, applying the general approach set out in Al-Adsani. The immunity which was applied in cases against State officials remained “State” immunity: it was invoked by the State and could be waived by the State. Where, as in the present case, the grant of immunity ratione materiae to officials had been intended to comply with international law on State immunity, then as in the case where immunity was granted to the State itself, the aim of the limitation on access to court was legitimate. Since measures which reflected generally recognised rules of public international law on State immunity could not in principle be regarded as imposing a disproportionate restriction on the right of access to a court, the sole matter for consideration in respect of the applicants’ complaint was whether the grant of immunity ratione materiae to the State officials had reflected such rules. Accordingly, the Court went on to examine whether there was a general rule under public international law requiring the domestic courts to uphold Saudi Arabia’s claim of State immunity in respect of the State officials; and, if so, whether there was evidence of any special rule or exception concerning cases of alleged torture.

(i)  The existence of a general rule: Since an act could not be carried out by a State itself but only by individuals acting on the State’s behalf, where immunity could be invoked by the State then the starting point must be that immunity ratione materiae applied to the acts of State officials. If it were otherwise, State immunity could always be circumvented by suing named officials. The weight of authority at both the international and national levels appeared to support the proposition that State immunity in principle offered individual employees or officers of a foreign State protection in respect of acts undertaken on behalf of the State under the same cloak as protects the State itself.

(ii)  The existence of a special rule or exception in respect of acts of torture: Even if the official nature of the acts was accepted for the purposes of State responsibility, this of itself was not conclusive as to whether, under international law, a claim for State immunity was always to be recognised in respect of the same acts. Having regard to the relevant international law and national and international case-law, while there was in the Court’s view some emerging support in favour of a special rule or exception in public international law in cases concerning civil claims for torture lodged against foreign State officials, the bulk of the authority was to the effect that the State’s right to immunity could not be circumvented by suing its servants or agents instead. There had been evidence of recent debate surrounding the understanding of the definition of torture in the Convention against Torture, the interaction between State immunity and the rules on attribution in the Draft Articles on State Responsibility, and the scope of Article 14 of the 1984 United Nations Convention Against Torture. However, State practice on the question was in a state of flux, with evidence of both the grant and the refusal of immunity ratione materiae in such cases. At least two cases on the question were pending before national Supreme Courts. International opinion on the question might be said to be beginning to evolve, as demonstrated by recent discussions around the work of the International Law Commission in the criminal sphere. That work was ongoing and further developments could be expected. In the present case, it was clear that the House of Lords had fully engaged with all of the relevant arguments concerning the existence, in relation to civil claims of infliction of torture, of a possible exception to the general rule of State immunity. In a lengthy and comprehensive judgment it had concluded that customary international law had not admitted of any exception - regarding allegations of conduct amounting to torture - to the general rule of immunity ratione materiae for State officials in the sphere of civil claims where immunity was enjoyed by the State itself. The findings of the House of Lords were neither manifestly erroneous nor arbitrary but were based on extensive references to international law materials and consideration of the applicant’s legal arguments and the judgment of the Court of Appeal, which had found in the applicants’ favour. Other national courts had examined in detail the findings of the House of Lords in the present case and had considered those findings to be highly persuasive. In these circumstances, the Court was satisfied that the grant of immunity to the State officials in the present case had reflected generally recognised rules of public international law. The application of the provisions of the 1978 Act to grant immunity to the State officials in the applicants’ civil cases had not therefore amounted to an unjustified restriction on the applicant’s access to a court. However, in the light of the developments currently underway in this area of public international law, this was a matter which needed to be kept under review by the Contracting States.

Conclusion: no violation (six votes to one).

(See Al-Adsani v. the United Kingdom [GC], 35763/97, Information Note 36)

 

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